Thank you for inviting me today. I am happy to be here on Algonquin and Anishinabe territory, my home territory.

It has been a 32-year journey for me to be here and the first thing I should do is explain the issue of unknown and unstated paternity in the Indian Act. Prior to 1985, the Indian Act explicitly codified a provision to protect children of unknown and unstated paternity, and through the 1985 amendments the Indian Act became suspiciously silent on the issue of unknown and unstated paternity.

That’s also when INAC developed their proof of paternity policy, which makes an assumption that an unknown and unstated paternity is a non-Indian man, so when I applied for Indian status in 1994 I didn’t know what they would do because of my paternal grandfather; I didn’t know who he was. What I found out is that they made the assumption that he was a non-Indian person and as a result it was determined that I was a non-status Indian.

So that’s the issue in a nutshell. You might have to hear that a few times to get that, which is fine.

The first thing I want to talk about is the remedy that was offered in Gehl. I don’t agree that I should be a 6(2); I think I should be a 6(1)(a). The comparative group would be the great-grandmothers and the grandmothers who were never enfranchised. They, and their descendants, are 6(1)(a)s, and I think I should also be that because I was born before 1985.

So this is the first thing I want to say is the judges gave me a remedy introducing a new sex inequality.

Another thing I want to talk about is INAC’s and the Department of Justice’s shift from law to policy. It’s become clear to me that INAC and the Department of Justice are of the position that, for the most part, they will only address known sex discrimination that the court has identified as Charter violations. This means that matters such as unknown and unstated paternity and matrilineal lineage, the 1951 cutoff, which have not been recognized as Charter violations, may not be addressed in law the way they should be.

INAC argues that these should be addressed at the policy level and I’m concerned because through Gehl we learned a lot of things about what INAC does at the level of policy. For example, it took INAC 32 years to develop their proof of paternity policy and in those 32 years they flung their arms in the air and said they weren’t capable of making a decision of good judgement.

Another thing that we learned through Gehl is that INAC does not disclose to the public their practices, standing operating procedures, aids, directives and policies both oral and written. And we learned that INAC developed a new post-McIvor policy that instructed staff they could no longer assume non-Indian paternity but they didn’t disclose that policy to the public and within that policy, they also said they weren’t going to re-open old files.

Another thing that we learned through Gehl is that INAC refuses to disclose evidence of policies so they could be properly adjudicated through court.

In summary, I’m concerned that when the court fails to determine Charter violations and addresses matters at the policy level, that opens the door for INAC and the Department of Justice to shift and create more sex discrimination.

It’s also not lost on me that INAC and the Department of Justice crafted the silence in law on the issue of unknown and unstated paternity so they could continue with their interpretive framework of “the need to get rid of all the Indians at all costs”, rather than the interpretive framework of “good moral judgment”, as the Charter guides. That’s how they continue with their sex discrimination at the policy level.

We must not allow INAC to unilaterally develop policies without solid guiding parameters that will protect vulnerable Indigenous women and girls from INAC’s known interpretive skew and poor behaviour. We need to move beyond adding carefully considered clauses and terms to the bill. We cannot allow INAC to construct the clauses needed.

We need to place parameters around the clauses and terms as a measure to make sure Indigenous women and girls do not face unreasonable barriers. Otherwise, INAC and Department of Justice will develop unreasonable criteria of evidence, such as the requirement of police reports, rape kits, social workers’ and therapists’ reports, and photographs of bruising and tears in the vagina.

INAC are government bureaucrats who seek the eliminate Indians at all costs. They are not concerned with understanding that many Indigenous women and girls will not report rape to the police. For valid reasons, Indigenous women and girls don’t trust the police. Many do not want to disclose situations of incest, and many don’t have access to social workers and therapists. Indigenous women and girls must not be put through the eye of INAC’s needle that further harms and violates them. INAC employees are not trained social workers or therapists qualified to address these situations where sexual violence and abusive partners are involved.

I personally think all situations where an unknown and unstated paternity is involved, that these files should be directed to an independent decision-making body. Otherwise, INAC with its skewed interpretive framework will continue to discriminate and impose additional harm at the policy level.

Senators, I ask you to collectively and carefully consider how we can best protect Indigenous women and girls from economically driven and unqualified INAC bureaucrats who have proven they lack good moral judgment. Needed is a solution that serves the most vulnerable in our society and one that prevents INAC from creating additional indignities to Indigenous women and girls, who are the victims of sexual violence.

There are some disturbing statistics we should consider. Through reason, it becomes clear that Indigenous women and girls, with disabilities or without, are bigger targets of sexual violence. They are more vulnerable and more likely to have a child of unknown or unstated paternity. For example, 83 per cent of women with disabilities or developmental disabilities have been victims of sexual assault, and 84 per cent of homeless Indigenous girls have been sexually abused. These are statistics that we need to pay attention to. All our laws and policies and practices must care for them. This is what good governance structures do: care for the most vulnerable rather than force them to continually deal with barriers of exclusion and harm.

In conclusion, I’m asking for a 6(1)(a) remedy. I ask senators to seriously consider placing guiding parameters around INAC’s policy-making process, as a way to protect Indigenous women and girls. Also, my overall thinking regarding the current version of Bill S-3 is that it does not address all the sex discrimination in the Indian Act, and it should not move forward. Senators have a role in ensuring all the sex discrimination is addressed. INAC must move beyond what has been determined to be Charter violations. The position that section 1 of the Charter needs to be tested must not be a barrier here.

Not addressing the 1951 cutoff because the court said that the issue was an issue of matrilineal lineage versus sex discrimination was wrong. We know judges are only human and prone to mistakes. We know judges need more training and understanding of Indigenous women’s issues. Said another way, I’m of the position that the hierarchy created in 1985 between Indian men and their descendants as they are registered as a 6(1)(a) and Indian women who are only registered as a 6(1)(c) must be abolished if you want to eliminate the sex discrimination and end this process of amending the Indian Act.

Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She recently won an Ontario Court of Appeal case on sex discrimination in The Indian Act, and is an outspoken critic of the Algonquin land claims process. Her bookThe Truth that Wampum Tells: My Debwewin of the Algonquin Land Claims Process offers an insider-Indigenous analysis of the Algonquin land claims process in Ontario. She has is new book titled Claiming Anishinaabe: Decolonizing the Human Spirit with the University of Regina Press scheduled to be published in the fall of 2017. You can reach her through, and see more of her work, at www.lynngehl.com.